The COVID-19 pandemic spurred countless businesses to transition to a remote workforce. Today, despite the public health emergency ending May 11, many of those workforces remain fully or partially remote. To that end, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin in February regarding telework under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA).

The Bulletin discusses what FMLA and FLSA compliance looks like when a business employs teleworkers and how these laws apply to remote work. Specifically, the Bulletin provides guidance to the Wage and Hour Division field staff on how to ensure that remote workers are paid properly under the FLSA; how to apply protections under the FLSA that provide reasonable break-time for nursing employees to express milk while teleworking; and how to apply eligibility rules under the FMLA when employees telework.

Although DOL Bulletins are not legally binding authority, they still provide important guidance for employers on enforcement positions and clarification of policies or changes WHD policy.

FLSA Takeaways

Below are the key takeaways from the FLSA portions of the Bulletin for employers with remote or partially remote workforces:

• In general: Employer obligations under the FLSA, including the obligation to maintain an accurate record of all hours worked, apply regardless of whether the work is performed at the employer’s worksite, at the employee’s home or at some other location away from the employer’s worksite. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked.
• Short breaks: Breaks of 20 minutes or less are compensable and must be counted and treatedby the employer as hours worked, regardless of whether the employee works from home, the employer’s worksite or some other location not controlled by the employer.
• Meal breaks and off-duty periods: Bona fide meal breaks – those usually lasting 30 minutes or more in which an employee is completely relieved from duty for the purposes of eating regular meals – are not hours worked and, thus, are not compensable. Similarly, “off-duty” periods and breaks longer than 20 minutes may also be excluded from compensable worktime under the FLSA but only if the employee is completely relieved from duty and able to use the break time effectively for their own purposes. Significantly, to be “completely relieved from duty,” the employee must either:

1. be given advance notice by their employer that they may leave the job and they will not be required to commence work until a specified time has arrived; or
2. be completely relieved from duty when the employer allows the employee to freely choose the hour at which they resume working and the time is long enough for the employees to effectively use for their own purposes.

These rules apply regardless of where employees perform their work (i.e., on-site or remotely).

• Break time for pumping breast milk: Covered employees must be given reasonable break time to express breast milk “for such employee’s nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers must also provide covered employees with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” These rules apply to all covered employees regardless of their work location. Notably, the FLSA does not require employers to compensate nursing employees for such breaks. When an employer provides compensated breaks, however, an employee who uses that break time to pump must be compensated for that break. In addition, like bona fide meal breaks and off-duty time, if an employee is not completely relieved from duty during pump breaks, the time must be compensated as work time. (We recently wrote about the PUMP Act, a new law that extends protections for nursing mothers beyond the FLSA.)

In summary, under the FLSA, employees who telework are entitled to compensation for all hours worked, for short rest breaks and, in qualifying circumstances, to take breaks to express breast milk free from intrusion and shielded from view. The Bulletin serves as a reminder to employers that the FLSA applies equally to remote workers as to employees working at an office, factory, construction site, retail outlet or any other worksite.

FMLA Takeaways

The FMLA entitles certain employees to take job-protected leave, which may be unpaid or used concurrently with accrued paid leave, for specified family and medical reasons. Telework employees are eligible for FMLA in the same way in-person employees are. Employees are eligible for FMLA if:

• they have worked for the employer for at least 12 months
• they have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave
• they work at a location where the employer has at least 50 employees within 75 miles

Determining worksite location for telework employees may not be an easy question but the FMLA is clear: the employee’s personal residence is not a worksite but the office to which the telework employees report or from which their assignments are made. Thus, if 50 employees are employed within 75 miles from the employer’s worksite, the employee meets that FMLA eligibility requirement. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

[View source.]